State v. Walker

891 P.2d 942, 181 Ariz. 475, 186 Ariz. Adv. Rep. 17, 1995 Ariz. App. LEXIS 67
CourtCourt of Appeals of Arizona
DecidedMarch 16, 1995
Docket1 CA-CR 92-1710
StatusPublished
Cited by20 cases

This text of 891 P.2d 942 (State v. Walker) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Walker, 891 P.2d 942, 181 Ariz. 475, 186 Ariz. Adv. Rep. 17, 1995 Ariz. App. LEXIS 67 (Ark. Ct. App. 1995).

Opinion

OPINION

TOCI, Judge.

Benjamin Lawrence Walker (“defendant”) appeals his convictions and sentences for one count of transportation of marijuana for sale, a class 2 felony, and one count of escape in the second degree, a class 5 felony. He argues that the trial court erred by:

1. denying his motion for judgment of acquittal on both charges;
2. permitting a police expert to testify on the use of coded ledgers in drug trafficking and on “drug courier” profiles;
3. admitting a fingerprint card in the absence of adequate foundation;
4. denying his motion for mistrial on the ground of improper prosecutorial argument; and
5. denying his motion for a new trial.

We resolve these issues as follows. We find that the trial court properly denied defendant’s motions for acquittal. We conclude that admission of testimony on the use of coded ledgers by drug traffickers was not error. We do not decide whether admission of the drug courier profile evidence was error because we conclude that, even if it was, admission of that evidence was harmless. Similarly, although the trial court erred in admitting the fingerprint card, we find that the error was harmless. Finally, we conclude that the trial court properly denied defendant’s motions for mistrial and for a new trial. Accordingly, we affirm defendant’s convictions and sentences.

I. FACTUAL BACKGROUND

In the early morning of March 12, 1992, defendant attempted to embark on an airline flight from Phoenix, Arizona to St. Louis, Missouri. When security personnel x-rayed a suitcase belonging to defendant, they observed three suspicious articles inside. Further investigation revealed that the items were tightly compressed bundles that contained forty-four pounds of marijuana. When placed under arrest by a police officer, defendant broke free of the officer’s grasp. He fled to a nearby parking garage but was quickly apprehended.

At trial, defendant testified that the suitcase containing the marijuana did not belong to him. The jury found defendant guilty, and the trial court sentenced him to concurrent, presumptive prison terms of seven years for transportation of marijuana and two years for escape. The court also imposed a $30,800 fine. Defendant filed a timely notice of appeal.

II. DISCUSSION

A. Denial of Judgments of Acquittal

1. Transportation of Marijuana For Sale

Defendant contends that the trial court erred in denying his motion for judgment of acquittal on transportation of marijuana for sale. He asserts that he was entitled to acquittal because there was insufficient evidence to connect him to the suitcase where the drug was found. We disagree.

A judgment of acquittal is only appropriate where there is “no substantial evidence to warrant a conviction.” Ariz. R.Crim.P. 20; State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting Ariz. R.Crim.P. 20). “Substantial evidence is more than a mere scintilla” of evidence; it is evidence that “ ‘reasonable persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt.’ ” Mathers, 165 Ariz. at 67, 796 P.2d at 869 (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)).

Here, there was evidence from which reasonable persons could conclude that the suitcase containing the marijuana belonged to defendant. The security officer supervising the airport checkpoint testified that defendant admitted that the suitcase was his and that he gave the officer permission to search it. In addition, the suitcase contained a notebook bearing defendant’s fingerprints and a *479 wall poster bearing the inscription “To Ben.” The fact that this evidence was contradicted or impeached does not render it insufficient for purposes of judgment of acquittal. See State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App.1991). Thus, the trial court’s denial of judgment of acquittal on the charge of transportation of marijuana for sale was proper.

2. Escape in the Second Degree

Defendant’s claim that there was insufficient evidence to support his conviction for second-degree escape primarily rests upon his interpretation of the statute defining that offense. In pertinent part, Ariz.Rev. Stat.Ann. (“A.R.S.”) section 13-2503 (1989) states:

A A person commits escape in the second degree by knowingly:
1. Escaping or attempting to escape from a correctional facility; or
2. Escaping or attempting to escape from custody imposed as a result of having been arrested for, charged with or found guilty of a felony.
B. Escape in the second degree is a class 5 felony____

(Emphasis added.) The nature of the underlying offense is the distinguishing factor between second-degree escape under subsection (A)(2) and third-degree escape. The third-degree escape statute provides:

A A person commits escape in the third degree if, having been arrested for, charged with or found guilty of a misdemeanor or petty offense, such person knowingly escapes or attempts to escape from custody.
B. Escape in the third degree is a class 6 felony.

AR.S. section 13-2502.

Defendant argues that he was entitled to a judgment of acquittal on the charge of second-degree escape because the state failed to prove that he knew he was under arrest for a felony. We reject this argument.

Although we have not previously considered whether knowledge of the nature of the arrest is a required element of second-degree escape, we have previously concluded that no such knowledge is required in cases of third-degree escape. See State v. Mena, 128 Ariz. 244, 246-47, 624 P.2d 1292, 1294-95 (App. 1980), approved in part, vacated in part, 128 Ariz. 226, 624 P.2d 1274 (1981). In Mena, the appellant contended that his conviction for third-degree escape was flawed because he was not informed, prior to his escape, that he was under arrest for disorderly conduct. In a portion of the opinion affirmed by our supreme court, we noted:

Appellant was talking loudly, cursing and disrupting the investigation to such an extent that the officers were unable to interview the witnesses. When appellant was warned and refused to be quiet, one of the officers told the other to arrest appellant and put him in the police car. He was taken and locked in the police car. He was later charged with disorderly conduct.

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Cite This Page — Counsel Stack

Bluebook (online)
891 P.2d 942, 181 Ariz. 475, 186 Ariz. Adv. Rep. 17, 1995 Ariz. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-walker-arizctapp-1995.